The Continued Interest in Professional Athletes' California Workers' Comp Claims

The NFL and the NFLPA is in a world of hurt these days (pun intended).  With accusations flying that  NFL Coaches offered "injury bounties" and legal claims being filed alledging that the most popular professional sport in America did not do enough to provide for the safety of its forefathers, it is no wonder that my blawg post on professional athletes workers compensation has been one of my most read articles.  In that September 22, 2011 post, Attorney Greg Grinberg, writer and editor of WCDefenseCA, succinctly explained why California has become the popular go-to jurisdiction for professional athletes to file their worker's compensation claims. 

Attorney Grinberg has continued this discussion with a series of in depth blawg posts, which further explore this issue.  Today, he discussed the Seminal Case: Injured Workers’ Insurance Fund of the State of Maryland v. Workers’ Compensation Appeals Board (2001) 66 Cal. Comp. Cases 923 (writ denied) involving Baltimore Colt Cleveland Crosby, which held that even though Crosby played only one game in California, he still was entitled to workers' comp. under California's labor code.  I encourage all readers who are interested in this subsection of professional sports law to head on over to WCDefenseCA, to participate, and to read Attorney Grinberg's "Visiting California for Workers' Comp" series. At the conclusion of his series, I plan on dedicating a post summing up Attorney Grinberg's posts while also providing my own opinions and interpretations regarding the issues he discusses. 

What happened to the NFL's HGH Testing Policy?

Penalty Flag! Excessive Celebration!  
The NFL and NFLPA should have taken the advice from"Pulp Fiction" character, Winston Wolf', instead of being so quick to congratulate themselves on being the first professional sports league to collectively bargain for Human Growth Hormone (HGH) testing.  Much to Commissioner Goodell's displeasure, the NFL and NFLPA were not able to implement HGH testing in the just concluded NFL Season. Even though they agreed to start testing for HGH in principle, however an HGH test has yet to be agreed to in any particularity.

During a pre-Super Bowl press conference, NFLPA Executive Director DeMaurice Smith's stated that HGH testing discussions are ongoing but there is no guarantee that an agreement will be reached before the 2012 NFL season. In fact, Smith declared:

"No one will bully us into a test"

The Legal Costs for Super Bowl XLVI

Yesterday's Super Bowl definitely was an exciting finish to an NFL Season that was on the brink of never occurring.  Remember that lockout that threatened to wipe out the season?  Well, here's a friendly a reminder I am sure most labor lawyers would be interested in.   The average Super Bowl ticket cost  $1,999.00, which is small beans in comparison to the amount that the NFL Players Association paid in legal fees incurred this past year. 

The Am Law Daily took an in depth look at how much was spent in legal costs leading up to the NFL lockout from March 1, 2010 through February 28, 2011.  The NFLPA, like all other Unions, have to file public LM-2 forms with the National Labors Relations Board.  The NFLPA spent approximately $63.2 million on representational fees including outside legal fees, and an additional $1.7 million on lobbying and political activities.  The top three law firms to rake in legal fees Latham & Watkins ($3.1 million), Dewey & LeBoeuf ($2.9 million), and Patton Boggs ($948,983).   DeMaurice Smith, former Latham and Patton Boggs Partner, and who is the current NFLPA Executive Director, did not do too shabby for himself either.  After agreeing to accept a $1 salary while the lockout was going on, Smith collected $1.5 million in back pay and an additional $1 million bonus for a job well done in resolving the labor quagmire. 

It will be interesting to see how large the legal fees were for next years disclosure that will include fees earned related to the lockout that occurred from March 2011 through July 2011.  I'll also provide a rundown of the NBPA and MLBPA's legal costs related to their CBA expenses once they become available.  However, Am Law Daily did a good job estimating their respective (MLBPA and NBPA) legal costs based on past disclosures. 

What exactly is in the new NFL CBA?

Lost in the excitement of the fact that football is back and the preseason games are in full swing is the fact there is a new 10-year collective bargaining agreement that is chock full of new and modified rules and provisions. With the second and third stringers seeing a majority of snaps, now is a better time to dig deeper into what exactly is in the new NFL CBA and the type of impact it will have on the NFL labor market as well as the ongoing and future CBA discussions in the NBA, MLB and NHL. The NFL CBA can be found here if you want to follow along at home.

Because the majority of the news reporters already covered the salary cap/revenue sharing deal points that seemed to take up a majority of the NFL lockout coverage, I will focus this discussion on more of the nuanced provisions such as: (1) the prevalence of binding arbitration as way to settle most disputes, including player contract holdouts; (2) new performance enhancing drug (HGH) testing; worker's compensation rules; (3) worker's compensation filing rules; and (4) the Commissioner's power to discipline players for off the field conduct, among others. Up first, we will discuss the rise of alternative dispute resolution, specifically the rise in the use of arbitration and whether it can be used to settle contract holdouts. Stay tuned!

No-no-no: David Stern Channels his Inner "Mutombo" to Preemptively Block NBPA

On Tuesday, Commissioner Stern ran up the "court" where he grabbed the first "Board"; National Labor Relations Board to be exact, to "block" the National Basketball Players Association (NBPA) from de-certifying as a Union. But enough for the flagrant foul worthy puns and onto what's going on in NBA Lockout Land. Stern decided to brush off his litigious rust that he fostered early on as the youngest Partner at Proskauer Rose, a white shoe law firm that has a significant sports law practice group, and preemptively strike and prevent the NBPA from decertifying. It seems as Stern learned from NFL Commissioner's Roger Goodell's cautious attitude toward the NFLPA decertification and wanted to stop it before it started. Goodell probably had a good understanding that it would take decertification in order to get the players back to the table. Goodell was rightfully optimistic that a deal would get done before risking any missed regular seasons games. You see, unlike the NBA, all of the NFL Franchises have been profitable. The lockout was just a way to reorganize how profitable the NFL could be and put the owners in a place where they could maximize profits for the longterm (i.e. 10 year deal.) In comparison, the NBA is not in great shape. Many teams have been taking losses the last few year to a point where almost half of the teams requested a credit extension from the League. That is not a good situation to be in when facing possible anti-trust litigation. Where as the NFL tweaked their salary cap structure, it seems that NBA Owners want to completely blow up their soft cap and start over again. This would be no easy fix in anti-trust violation settlement discussions. David Stern knew this and decided to nip it in the bud.

Are you ready for some football?!?!?! For realz!

It's over, it's over. The 136 day lockout is finito! Once again, it holds true that football does not really start until end of July! However, just as I predicted it was one hell of a roller-coaster ride to get to this point, from the Owners' vote last Thursday (gratuitous link due to this very bLawg getting cited) to today, but I do not think it is premature to say that the lockout is over and there should be football in the near future!

Players Stuff the Rush

Just as I imagined, NFL players are not moving so fast on a vote on the NFL Owner's ratified agreement, with many stating that the owners may have tried to sneak in some non-agreed to terms. Also, as I mentioned, the players are not so quick to recertify their union and they are not happy that the Owner ratified agreement would interfere with their decision to reform as a union. NFL Network Reporter Albert Breer Tweeted:

Just filed a story on a second email from NFLPA to player reps, breaking down issues with deal and, in particular, recertification timeline. Email says NFL's rough timeline violates fed labor law: "Those laws prohibit employers from coercing their employees into forming a union."

The players may not be unfounded with this claim, as Section 7 of the National Labor Relations Act provides that “[e]mployees shall have the right to self-organization, . . . to bargain collectively through representatives of their own choosing, . . . and shall also have the right to refrain from any or all of such activities..." The players may be able to make a successful claim that the deadline to re-certify violates Section 7 of the NLRA.

More to come...

Are you ready for some Football?!?!??-Owners' Approve...now in the players hands

According to many sources, the NFL Owners have approved a new collective bargaining agreement. The players will have a conference call at 8:00 PM EST to vote on whether to accept the agreement as well. The more interesting issue is that theoretically speaking, in order to accept the deal, the players would likely have to recertify as a union first and there are reports stating that a coalition amongst the ranks is against doing so. My opinion is that the owners likely would not accept a ratified CBA that is entered into via the Players' "Trade Association" because they would then lose their anti-trust exemption when it comes to player restraints. Usually a Union protects the interests of an average player to the detriment on superstar players, so it will be interesting to see who is in the coalition against recertification. Either way, stay tuned for what could be a climatic ending to the NFL Lockout.

I apologize for my recent lack of posts as I have been doing "2-a-days" in anticipation for the CA bar next week. I plan to provide an analysis of the biggest changes in this new CBA that affect sports labor and employment practices and which could impact the NBA's and MLB's respective CBA negotiations. I also plan to analyze this Recertification issue in more detail when my life gets back to normal. Follow me on Twitter for mini updates and I apologize for the brief hiatus.

Good Luck to any fellow bar takers out there...

How did the Verbal Handshake almost turn Into a Symbolic F You?

While the NBA and the NBPA were descending into the lockout abyss, it looked as if the NFL and its player were ready to emerge in harmony from their lockout inferno. In fact, it was only Wednesday where Player Head DeMaurice Smith invited NFL Commissioner Roger Goodell to jointly address the NFLPA Rookies at the NFL Rookie Symposium in Sarasota, Florida.

However, that optimism soured when Smith and Goodel returned to the bargaining table yesterday,